About that Campus Free Speech Executive Order

A crude tool unlikely to do much good and that might do some harm.

During President Donald Trump's appearance at the 2019 Conservative Political Action Conference, he made a surprise announcement that he would soon be signing an executive order to improve the free speech climate on college campuses. His initial statement was brief and vague, but threatened that if colleges do not allow free speech "it will be very costly" because it would put their federal grants at risk. Last week, the administration finally released the promised executive order, and it was promptly buried by the news that the special counsel had completed his investigation and submitted his report.

The executive order turned out to be a nothingburger, though one with some potential for mischief. As has been so often the case with the Trump administration's policy announcements, the executive order is vague on the specifics and a great deal will turn on the details of implementation to be announced at some unknown future date. Nonetheless, there are a couple of things of note about the order.

Although billed as being about free speech, much of the executive order in fact focuses on a different issue relating to higher education. Both its rhetoric and its operational directives focus on enhancing the "College Scorecard" launched by the Obama administration that provides comparative data on student debts, completion rates, and post-college earnings at various colleges. The Trump executive order calls for some additions to the existing database and encourages some additional study of policies to enhance completion rates. Notably, by adding program-level earning data to the Scorecard, the administration puts a bit more pressure on fields of study that feed into less remunerative careers.

As for free speech, the executive order directs various agencies, with the coordination of the Office of Management and Budget, to

take appropriate steps, in a manner consistent with applicable law, including the First Amendment, to ensure institutions that receive Federal research or education grants promote free inquiry, including through compliance with all applicable Federal laws, regulations, and policies.

The relevant federal grants do not include student financial aid. Institutions are to be encouraged "to foster environments that promote open, intellectually engaging, and diverse debate, including through compliance with the First Amendment for public institutions and compliance with stated institutional policies regarding freedom of speech for private institutions."

This is pretty thin gruel for anyone interested in campus free speech, and that might be the good news. The executive order leverages a big stick, but not as big of one as the president initially implied. Research grants are a significant source of revenue for schools such as the University of California at Berkeley, but they likely have less relevance for places like Liberty University or Middlebury College. The executive order notes the potentially important difference between public universities and private universities, giving the latter more flexibility to adjust its own commitments to free speech given their own institutional mission and values. It also hews closely to better enforcing existing federal law rather than announcing a bold new directive of its own. It is not clear how much this changes the status quo.

There are some troublesome features of the executive order, despite its modesty. The executive order directs the relevant agencies to coordinate their efforts with the OMB, which is more directly responsive to the White House. In doing so, the order opens the door to a greater politicization of any federal intervention in campus free speech issues than might otherwise be the case. Even if you are happy with what that might look like in a Trump administration, you might be less happy with how it might play out under a President Bernie Sanders.

Some have pointed to the Obama-eradirectives for scientific integrity in the administration of research grants as a model for a free speech directive. If the Trump administration goes through the same lengthy process for drafting a regulation as the Obama administration did, then the result might be more likely to withstand judicial scrutiny than much of the Trump administration's work product but the resulting regulations are also more likely be modest in scope. Taking steps to prevent research misconduct is closely related to the purposes behind giving research grants in the first place, and regulations securing protections for free inquiry in scholarly research might be a relatively easy lift. It does not seem particularly helpful to have agencies mentioned in the executive order like the Department of Energy or the National Science Foundation (the kind of agencies who actually award and oversee research grants) attempting to develop regulations to address the broad scope of campus free speech issues ranging from controversial social media posts by faculty members to treatment of student groups and external speakers to visitors to campus getting into fist fights in the free speech zone.

It would be nice if colleges were to take this opportunity to revisit their policies on the books relating to academic freedom and free speech, but many free speech controversies that arise have less to do with campus policies than with campus culture and the implementation of policies. It is not at all obvious that colleges worried about their research funding can or will do much to prevent such controversies from arising. Some will no doubt try to adopt some strongly worded policies that might not help the educational environment very much but that will hopefully insulate them from the threat of lost funding. The biggest worry is that the executive order will set the conditions for a White House to score some easy political points by taking aggressive action against a university because an incident on that campus has gone viral. The possibility of such politically motivated thunderbolts from above will not foster a better university environment for intellectual debate on difficult and controversial issues.

The campus free speech executive order might have given the administration a brief moment of publicity relating to a hot button issue, but it is unlikely to be particularly useful in improving the free speech culture on college campuses.

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140 responses to “About that Campus Free Speech Executive Order”

“The executive order directs the relevant agencies to coordinate their efforts with the OMB, which is more directly responsive to the White House. In doing so, the order opens the door to a greater politicization of any federal intervention in campus free speech issues than might otherwise be the case. Even if you are happy with what that might look like in a Trump administration, you might be less happy with how it might play out under a President Bernie Sanders.”

I think the point of this was to respond to the already politicized nature of federal interventions, so that the EO wouldn’t be warped into compliance with the previous administration’s contrary stance on the matter. A future Bernie administration would scarcely need Trump precedent to politicize things.

I highly doubt Bernie would be raging around demanding colleges arrest speaker disruptions, stop heckler veto disinvitations or lose funding, and disdain using the Dear Colleagues letter to authorize silencing of one half of a debate that makes the sensitive get dizzy and collapse.

It’s especially disturbing here though because liberalism was a bulwark against censorship, in even the most outrageous areas.

Let me be very clear: it appears, sadly, that that effort was driven more because it was an in-your-face to Mr. and Mrs. Middle America (e.g. defending marching rights for Nazis) who were against stuff like that, rather than on principle.

Now that they can censor in a restricted arena (work, education) themselves, throw that principle to the wind.

We can no longer rely on liberalism to defend free speech because they no longer care about pissing off the average, socially conservative voter, when they see the power of censorship to motivate their own supporters.

To the ACLU: stop screwing around with sticking a toe into government censorship.

I hope to be proven wrong about creeping censorship. Censorship: “Don’t make me angry. You won’t like me when I’m angry.”

“It’s especially disturbing here though because liberalism was a bulwark against censorship, in even the most outrageous areas.”

They were only a bulwark against censorship because they expected their foes to be the censors. That’s the ugly truth. They defended Nazis because a country where Nazis couldn’t march might be a country where Communists couldn’t march.

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Remember when they decided to hold town hall meetings so that various congressfolk could come and explain what they were working on for healthcare reform? Who were the folks that disrupted those, perchance?

All, but the most oblivious, will agree that progressive propaganda pumps control almost all of the education apparatus in this country. Their products, i.e., victims (in turn) have power in many other institutions and government agencies. No meaningful reform (in the foreseeable future) seems possible in the face such overwhelming odds.

The conservative colleges tend to be shit-rate institutions, though, and their graduates tend to be no-count losers, so they aren’t mentioned as often (except at revival meetings) as legitimate colleges.

“No, the federal government should not be in education policy at all. But it is.”

But as long as YOUR PARTY is running it, you want them to have more power. When THE OTHER GUYS run things, you’ll go back to “government should be hands off”, and pretend that your policy never changed.

Of course he is. The point is always the ideologically conservative outcome. Any espoused “principal” that gets them there is fine, and also fine to abandon that “principal” when it takes them the other way. Small government, libertarianism, originalism, textualism, individual rights, first amendment restrictions; all espoused or discarded as necessary.

The question is, who should make the policy, un-elected government gnomes or the duly elected president and his close associates.?

I would say, policy should be made through the legislative process, which requires building consensus in Congress and getting the approval of the president, followed by an open and rigorous regulatory process, which requires so-called “un-elected government gnomes” to study the issues thoroughly, explain the reasoning behind their policies in publicly-distributed materials, and to act always within the bounds of granted legislative authority, and then potential review by the courts, who can act in limited ways to “correct” agencies that have overstepped the bounds of their authority or the evidence behind their policies.

I once worked at a state university. For reasons not germane to this conversation, it became pertinent whether or not I was a “state employee”. Turns out, while the university did receive funds from and was associated with the state, it was not a part of the state government and was a (mostly) autonomous entity.

How it would play out under a President Bernie Sanders? That’s your objection? I think the real problem is that it is playing out everyday under hundreds of little Bernie Sanders in campuses across the country. Which is the impetus for the order in the first place. But it was issued by President Trump so naturally it must be opposed.

” I think the real problem is that it is playing out everyday under hundreds of little Bernie Sanders in campuses across the country.”

If you don’t like the way a school is run, don’t go there. When you start pretending that all colleges, everwhere, are objectionable, it starts to sound like “sour grapes!” “Sour grapes!” “I totally coulda went there, but I didn’t like the way it was run!”

If you don’t like the way a school is run, don’t go there. When you start pretending that all colleges, everwhere, are objectionable, it starts to sound like “sour grapes!” “Sour grapes!” “I totally coulda went there, but I didn’t like the way it was run!”

Then I have every right to be there. THEY are taking MY money after all…

Don’t be absurd.

There’s a military base in my town. Payed for by taxes. If you think that gives you a “right” to be there, feel free to make that case with the armed guards.

How about a prison? Any given prison (even the private ones) are paid for with state or federal funds. You think you have a right to explore it to your heart’s content?

Hospitals! Lots of areas where you’ll get tackled and tased for wandering unescorted. That a violation of your “rights”?

For that matter, we have government funded museums that close and lock the doors, countless monuments that periodically close to the public, national parks that have a queue to reserve a time slot, and so-on.

In that public funding doesn’t entitle you to a “right” to all-areas access. This wasn’t subtle.

And I’m sure you have walked on prison grounds. Unless you were working there, I have the highest doubts you were given free reign to explore anywhere you wanted. You were most likely given limited access to select areas, and forbiden access to all other areas. Same with hospitals.

And quite simply, if you cannot explore to your dark little heart’s content, then no, you did not have any “right” to be there. You had a privilege. Don’t confuse the two.

And you’re aware that limited access due to high demand and banishment of dissenting views aren’t ACTUALLY identical, right?

I am. Are you aware that being denied a platform you have no right to is not the same as being “banished”?

You Trumptards are free, at any point, to actually defend what he’s doing, instead of just rolling your eyes about “TDS” going amok, yet again.

The fact is that Trump is often, and usually, wrong. He just is. The reason for this is that he is a total ignoramus and shifts his positions according to how he thinks it’s playing in the media. He doesn’t care about the rule of law and has little patience for the groundwork necessary to give his policies any kind of lasting effect. All he cares about is the next news cycle.

Literally every day gives us an example. Off the top of my head: He reversed the DOE’s decision to de-fund the special olympics. He decided to reverse Treasury’s North Korea sanctions. This whole “free speech” nothingburger itself came out of some tossed-off comment he made at a speech a month or two ago.

It’s kind of irrelevant how this would play out under President Bernie Sanders. If Bernie Sanders ever became President, we’d have bigger problems than free speech on campus, like getting through the day without drawing the attention of the secret police.

Even if you think it is Bernie Sanders’s fault for significantly contributing to whatever your views are of college campuses, what’s that got to do with secret police?

Back to the Free Speech Movement, how in your view has Bernie Sanders contributed to conformity on college campuses? What’s your evidence for this mind-numbing conformity? Have you considered that your views about what is actually happening on college campuses is misinformed, based on the sorts of news/media you consume most often?

So you are basing your views on the articulated views of insincere people? What is your data-driven evidence that mind-numbing conformity is happening on colleges? Even a majority of college self-identifying conservative/Republican students don’t take your view.

Bernie’s a communist, a Stalinist red diaper baby. Like all communists, he’s for civil liberties so long as somebody else is in power, but if he ended up in power, he’d don those hobnail boots so fast your head would spin, just like his heroes did.

“…he’s for civil liberties so long as somebody else is in power, but if he ended up in power…”

He’s in power. He’s been in power since the 80s. He has decades-long history of votes on civil liberties issues from which we can deduce where he’d fall on civil liberties. So far as I can tell, the only things you’d find objectionable is that he doesn’t agree with you re: citizens united. But do you have any indication from his record–rather than just the fact that he’s a comical communist pinko in your view–from which you can convince the rest of us that he’d use secret police?

In another threat, you chide others for assuming that the President has committed crimes in the absence of evidence. Here, you’ve gone a step further by charging Sanders as a KGB civil liberties death squadder, despite a career of evidence against the charge.

“The Left used to proclaim the massive importance of due process to protect the innocent…”

1) This proves too much, because it means everyone who ever proclaims the importance of due process is a secret manchurian candidate. Since the United States also has an “open and free constitution” are we destined for KGB secret police? Grow up.

1) This proves too much, because it means everyone who ever proclaims the importance of due process is a secret manchurian candidate. Since the United States also has an “open and free constitution” are we destined for KGB secret police? Grow up.

I am wondering what you are doing. Are you attempting to use logic because, honestly, you’re not very good at it.

If somebody proclaims the importance of due process THEN claims that due process only protects criminals — as, say, rape tribunal advocates have a habit of doing — then they are utterly not sincere. They lied from the get-go.

Please continue to broadcast your proud ignorance on shit you post about online. You don’t care about what a candidate’s actual views are, just the comically wrong ones you’ve invented in your head.

Your brilliant logic is that Bernie Sanders must be a civil liberties trampler because “the Left” held an insincere position about some pet issue you care way too much about, even though you haven’t bothered to show Bernie Sanders’s alignment to that position. And when someone points out that Sanders’s position is actually contrary to “the Left” you hand-waive saying it doesn’t matter. So who is the fucking insincere person here? The Left? Or you? You’re not interested in learning about other people’s positions, you’re just here to throw hand grenades. Eat shit.

“It’s fair to say the last election was undemocratic, but there are still democratic operations taking place in that country,” Sanders told an audience at a CNN town hall in Washington after being asked by CNN’s Wolf Blitzer why he wouldn’t use the term to describe Maduro. “What I am calling for right now is internationally supervised free elections.”

That’s what’s known as “Praising with faint damns.”; The flip side of damning with faint praise. There’s no good reason for Bernie to refrain from calling Maduro a dictator, except for his sympathy for left-wing dictators.

And ‘red baiting’ is needed more than ever in an age that’s forgetting the horrors of communism.

The post above mine. The one I replied to. When asked why BERNIE — not the government, BERNIE personally — didn’t call Maduro a tyrant, Pollock opined “Unless the government is still trying to negotiate him out” as a reason.

“There’s no good reason for Bernie to refrain from calling Maduro a dictator…”

“Sanders criticized Nicolas Maduro’s brutal regime as well, noting that it has committed many atrocities, cracked down on dissidents, used violence against unarmed protesters, and violated the country’s constitution. The senator recommended that the United States supports “self-determination” for the Venezuelan people, fair elections, and the rule of law.”

What “hems and haws about dictatorships in places like Venezuela” are you referencing?

Here are some things he has said about Venezuela:

“When I talk about Democratic socialist, I’m not looking at Venezuela. I’m not looking at Cuba. I’m looking at countries like Denmark and Sweden”

He condemned Maduro, but cautioned involvement in the current revolution. Do you think our history in Latin America is so good that he’s wrong? Are you sure the President’s decision to recognize Guaido is going to look good 2 years from now? 4 years? What if we get involved in regime change? Do you have any hope that will end well?

I am curious who you are replying to with the constant “Is intervention a good idea” question, given that nobody has advocated it.

Well, if the Venezuelan people reject Maduro, or if American nominal or material support pushes the country into a civil war, you’d find no reason to rethink our policy?

I keep forgetting that countries having internal strife are ALWAYS the fault of the USA. Those dark-skinned folks making their own decisions…silliness, I tell you.

If a civil war breaks out in Venezuela, Maduro is still a tyrant. Supporting anybody other than him would still be a better idea.

And the President refuses to rule out options. Stunner. A President isn’t supposed to say “Well, that won’t happen”. He has engaged us in fewer wars than his Nobel Peace Prize winning predecessor, for what it’s worth.

“I am curious who you are replying to with the constant “Is intervention a good idea” question, given that nobody has advocated it.”

We’ve already intervened. It’s not yet boots on the ground, but let’s not pretend submitting resolutions to the UN isn’t a first step.

“Those dark-skinned folks making their own decisions…silliness, I tell you.”

The context for you to make this is strange. Maduro won the election. That doesn’t mean he’s the popular ruler, but there was an election. Guaido (for good reasons) asked that the UN not certify the election. The problem is we don’t know who the Venezuelans would pick. That hasn’t stopped you from supporting the side that says Guaido is the ruler of Venezuela, despite the fact that he’s never won an election there.

“If a civil war breaks out in Venezuela, Maduro is still a tyrant. Supporting anybody other than him would still be a better idea.”

How many times can this stupid hubris lead us (and to the country we go to) lead to utter folly before it stops being made? Is Iraq objectively better off now than under Saddam?

“He has engaged us in fewer wars than his Nobel Peace Prize winning predecessor, for what it’s worth.”

Perfect example. This smells like Libya. Do you think Libya was a good idea?

“The crappy politics in Latin America can be easily traced to the CIA’s shenanigans in the region in the 1960s.”

Nah. They certainly didn’t help any, but the biggest problem is the income inequality. So, every couple of decades, they put the rich folks against the wall, and redistribute the wealth amongst a few other people, lather, rinse, repeat.

Given that Trump’s ICE has recently been exposed as engaging in several “secret police”-type activities, I have to surmise that what you really mean is that you’re worried that the secret police might target you instead of those you disagree with politically.

The executive order notes the potentially important difference between public universities and private universities, giving the latter more flexibility to adjust its own commitments to free speech given their own institutional mission and values.

It will be interesting to watch conservatives attempt to develop a rule that enables right-wing schools to continue to reject academic freedom, teach nonsense, bash gays, and enforce old-timey speech codes while requiring schools such as Columbia, Yale, and Sarah Lawrence to appease bigotry and backwardness.

I’m aghast at the level of (non-)discourse in the comments. I used to regularly visit the VC five or six years ago (always lurked, never posted). The comments were a favorite. The discussions then, while spirited, rarely devolved into name-calling and “I know you are but what am I” kinds of playground taunts. I used to enjoy them because people who disagreed could do so with intelligence, logic, and even a touch of humor. It was even ok to cede a point now and then.

This thread has left me wondering if I should bother to read comments here anymore. If this is the kind of debate on VC now, it’s no better than FB or the snark on Twitter. So disheartening. Is this what 2019 rampant partisanship has gotten us?

Yeah, right, when have we ever said Trump could do no wrong? I don’t know even of parody accounts that take THAT position.

Am I supposed to ignore it when he does right, just because he committed the ultimate sin of defeating Hillary? Am I supposed to compare him to some non-existent ideal President, instead of the real world alternatives?

I’m not enthusiastic about that bump stock ban, or his support of “red flag” laws. His personal life is something of a dumpster fire. And anyone who’d hire Cohen as a lawyer can’t be entirely on the up and up.

when have we ever said Trump could do no wrong? I don’t know even of parody accounts that take THAT position

You defend him from literally everything anyone posts about him, because he’s better than the liberals you’ve conjured out of your imagination. That you occasionally post that he could maybe be more libertarian doesn’t change that you are there for Trump in every way that matters.

“…literally”…? As in “literally Hitler”…? I LITERALLY (using the term properly, this time) just heard Bill Maher say that there is no such thing as Trump Derangement Syndrome, because EVERYTHING he does is deranged. He was not kidding. The Mueller Report should have (and in some circles actually HAS) propmpted some deep soul searching amongst your kind. Saying his critics are (most of the time) up to their eyeballs in illogic, hypocrisy, and corruption, is NOT the same thing as defending “literally” everything Trump says or does.

You are a great one for that “more in sorrow than in anger pose” comment: “do better”. Do Better.

The fact that your worship of guns exceeds even your idolatry of Trump is irrelevant.you defend his grifting business career, for example, and swallow his claims about his genius. Bankruptcies, lawsuits, stiffed vendors, Trump U., All just fine.. his endless stream of lies. You love it. Appointing Fox morons – Kudlow, Moore – great.

You’re a brainless sycophant, which is doubly pathetic because you’re not actually stupid. You’ve just been on a 2+ year gloating high since 2016, and refuse to think..

On the day you criticize Trump for supporting red-flag laws, don’t expect me to defend him. OTOH, if you criticize him for something I approve of, or something that’s just delusional, why shouldn’t I defend him?

This is what moving to the Washington Post and then Reason got us. The Volokh Conspiracy was a better blog in the sense you’re talking about when it was independent.

It also had a smaller reach, which was not unconnected with it having a better comment section. They didn’t like that smaller reach, which is why they’ve been looking for a host that would bring them more traffic.

Part of the problem here at Reason is that the magazine/site used to be Libertarian, but is in the process of transitioning to just a left-wing site with a bit of libertarian face paint. And the more libertarian commentators don’t like that, while the left-wing commentators are emboldened by it.

Well, it’s not just your old school libertarian. You can’t overlook that some heavy duty Chinese money is flowing through lobbyists into the USA and into the pockets of anyone who stands willing to oppose Trump’s trade policies. Especially with China.

To be fair, debating points in free speech threads are so picked over that it ends up being a ‘more zealous than you’ contest pretty quickly. Other more novel and legally meaty topics can be more substantive.

It’s a shame to see how far it has sunk. On the old VC there were few if any trolls and the liberal/conservative mix was fairly equal. Now many of the threads are just destroyed by trolls at both ends of the spectrum, and some of those who tended to be reasonable have devolved. I think that Eugene should have a heavier hand with banning but it’s his show, for better or worse.

Inevitably, the moderator ends up making close calls between “Your position is idiotic” and “You are an idiot,” and it becomes a kind of “civility” rule. Perfectly substantive debate gets banned because the rhetoric is somehow wrong, and there’s no accountability mechanism for when mods get it wrong.

First, the move from VC to WaPo resulted in a big shift of readership. You couldn’t read or comment at WaPo unless you were either a subscriber or (in a curious move) viewing from an educational or governmental location. Plus, the WaPo’s commenting system is beyond useless. The result was dropping readers with an interest in policy or law but not students, professors, or government employees and gaining readers used to WaPo’s lower reading-grade level. And it was difficult to start, much less maintain, any kind of thoughtful exchange.

The move from WaPo to Reason has addressed the latter issue somewhat, but the Reason commentariat has infected the VC board with an awful lot of puerile nonsense. I can’t think of anyone here who regularly engages in the kind of legendary exchanges that could happen at the old-old VC. Certainly, there are a handful who seem to have the background necessary to do so. But with few other players to engage with, they seldom engage themselves.

I tend to only give actions like this when it comes to college campuses mild support. Forcing some universities to adopt some policies friendly to free speech is probably worth it for the political shot over the bow. Also, it might give someone a 1983 or state contract law claim at some point, but little else will be accomplished. Even if there was teeth behind the EO is the DOE really going to strip a university of research money? Probably not seeing that OCR has never really done so for violations of civil rights statutes. The threat of an enforcement action might be enough to get some modest changes much like the Left did using Title IX, but it will produce no real victories.

If Trump really wanted to get down to the core, he would ask Congress to give a private right of action to students, faculty, staff, etc. when their free speech rights are abridged (something separate of 1983) and provide for actual, compensatory, and punitive damages along with legal fees and injunctive relief. Perhaps even pegging the punitive damages at a minimum of $5 million per violation. That would get the attention to at public schools and might get some real changes moving forward.

I doubt mainstream America, and its strong liberal-libertarian schools, are in the market for pointers from conservatives about censorship. Educated Americans are familiar with right-wing schools, and with the ways in which strident censorship, nonsense, and childish dogma contribute to the lack of quality at conservative campuses.

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